Failure to develop record dooms state's appeal

John R. Kurth won in State v. Simpson, No. 105,182 (Kan. June 27, 2014), affirming Judge Nafziger's in limine order suppressing testimony in a Jefferson County aggravated indecent liberties prosecution.  The state appealed the suppression order.  In its brief, the state claimed that the trial court abused its discretion "when it deemed the witness to be incompetent and suppressed the testimony of that witness" even though "the Defendant introduced no evidence that tended to establish one of the two alternative standards for witness incompetency pursuant to K.S.A. 60-417." The KSC faulted the COA for reaching beyond this narrow issue and reversing the district court on other grounds.  Instead, the KSC held that the record did not support the state's claims on appeal:

the record does not support the State's contention that the district court based its ruling solely on a determination that K.S. was incompetent to testify. While the State repeatedly urged the district court to conduct a hearing to determine K.S.'s competency, the court failed to focus on any particular concern in its orders related to the motion to compel or during any of the proceedings generated by the motion. For instance, in the journal entry formalizing the court's limine order, the district court indicated it based its ruling on "the previous rulings and Orders of the court" and "the non party [sic], natural mother's, failure to consent to the evaluation of the alleged victim and consequential failure to comply with the previously ordered evaluation/examination." This language seems to suggest, as Simpson contends, that the court suppressed K.S.'s testimony as a sanction for her mother's refusal to comply with the evaluation order.

The KSC noted the familiar rule that the appellant has the burden to provide a record on appeal to support its claims and, applying that rule, held that the failure in this case required affirmance of the district court:

Although ultimately unsuccessful, we will respect the State's strategic decision to narrowly frame its issue. Because the State asked the Court of Appeals only to review whether the district court abused its discretion in making a competency determination, we must find the record and the district court's rulings inadequate to answer this question.

This case highlights the importance of (1) making your record when you are an appellant, (2) holding the state (and court) to this standard when the state appeals, (3) being careful not to fill in the record on appeal for the state when it fails to do so.